Title: Intangible democracy: on the interpretation of Art. 79.3 of the German Basic Law

Authors: Ignacio Gutiérrez Gutiérrez

Addresses: Departamento de Derecho Político – Facultad de Derecho, Universidad Nacional de Educación a Distancia – UNED, C/ Obispo Trejo, 2, E-28040 Madrid, Spain

Abstract: Article 79.3 of the German Basic Law (Grundgesetz, GG) expressly excludes constitutional amendments affecting the 'the principles laid down in Articles 1 and 20'. Art. 20.1 GG begins by defining the Federal Republic of Germany as 'a democratic and social federal state', and the democratic principle is also considered to be included in the guarantee of human dignity (Art. 1.1 GG), which is expressly mentioned in and subject to the unamendability clause. In turn, the current Art. 23.1 GG imposes the application of the limits of Art. 79.3 GG on all of the constituting treaties of the European Union and their subsequent modifications. In addition, Art. 146 GG provides for the eventual coming into force of 'a constitution freely adopted by the German people' with a surmised loss of force of the Basic Law, without specifying whether this new constitution would have to equally respect the principles of Arts. 1 and 20, or whether it would at least have to be a democratic constitution. This study aims to describe how, through the commentary on these provisions, German jurisprudence addresses the democratic principle in terms of the content of the aforementioned unamendability clause.

Keywords: democracy; democratic principle; democratic constitution; intangible democracy; constitutional amendments; unamendability clause; human dignity; German Basic Law; German jurisprudence; German constitutional interpretation; Art. 79.3 GG; European Union.

DOI: 10.1504/IJHRCS.2020.111521

International Journal of Human Rights and Constitutional Studies, 2020 Vol.7 No.4, pp.356 - 372

Received: 10 Jun 2020
Accepted: 12 Jun 2020

Published online: 23 Nov 2020 *

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